Songer v. State

• Decision Date: 09 September 1982
• Docket Number: No. 59852,59852
• Citation: 419 So.2d 1044
• Parties: Carl Ray SONGER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1044

419 So.2d 1044

Carl Ray SONGER, Appellant, v. STATE of Florida, Appellee.

No. 59852.

Supreme Court of Florida.

Sept. 9, 1982.

Joseph Jordan of Bailey & Jordan, West Palm Beach, for appellant.

Jim Smith, Atty. Gen. and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.

ADKINS, Justice.

We have for review an appeal from an order denying a motion to vacate judgment and death sentence. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

Appellant, Carl Ray Songer, was convicted of first-degree murder and sentenced to death. This Court affirmed both the conviction and the sentence. See Songer v. State, 322 So.2d 481 (Fla.1975) (Songer I). The United States Supreme Court vacated appellant's sentence and remanded the case to this Court for reconsideration in light of the ruling in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). See Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977).

This Court, in turn, remanded the case to the trial court for resentencing where appellant was again sentenced to death. We affirmed the second sentence. See Songer v. State, 365 So.2d 696 (Fla.1978) (Songer II).

In September, 1980, a warrant ordering appellant's execution during the week of October 3-10, 1980, was signed by the governor. Execution was stayed by this Court and the warrant has expired. Appellant requested a hearing before the trial court on a motion to vacate judgment and death sentence. The request for a hearing was granted and the hearing set for the day requested.

At the hearing, appellant orally moved for a thirty-day continuance of the hearing and was refused. At the conclusion of the hearing, the trial court denied the motion to vacate. This appeal followed.

Appellant first argues that at sentencing, the court failed to instruct the jury that the state had the burden of proving beyond a reasonable doubt that the death penalty was appropriate. Instead, he contends, the jurors were given the impression that there was a presumption of aggravating circumstances and that appellant had to prove that he was worthy of mercy. The failure to raise this issue on direct appeal does not bar its consideration now, he asserts, because an issue of fundamental error may be raised at any time.

We do not agree that the trial court fundamentally erred on this point and do agree with the trial court that the issue should have been raised on direct appeal. We note in passing, however, that appellant was not burdened with proving that he should not be put to death--the state properly was required to show the existence of aggravating factors warranting the sentence imposed.

Appellant's claim that the trial court failed to properly instruct the jury on the scope of mitigating circumstances which may be considered in sentencing has already been considered by this Court. See Songer II, on rehearing. Thus, it too is not a proper issue for review in this proceeding.

The questions of whether appellant, on resentencing, actually saw his presentence investigation report, whether the homicide was committed to disrupt a governmental function, whether appellant's age or his "insignificant" criminal history should have been considered as mitigating factors, whether appellant was under a sentence of imprisonment at the time that he committed the act, and whether the jury should have been informed of the legal consequences of a life sentence are all matters which should have been raised on direct appeal. As such, we will not consider them in a 3.850 proceeding.

The next point raised, whether appellant was deprived of effective assistance of counsel at all stages of his trial, is cognizable in a 3.850 proceeding, but we do not agree that the representation provided was ineffective. Appellant first argues that his attorney only consulted him on three occasions prior to trial, and never for more than an hour. The trial court, however, found that the two men had several conferences on a variety of subjects, and we accept that finding as correct.

As further evidence of inadequate representation, appellant notes that no witnesses were called to testify regarding his drug usage. He lists several people, including his companion at the time of the killing, whose testimony supposedly could have been used to assert a defense of impaired mental condition resulting from extensive drug use. Appellee responds, and we agree, that appellant's trial counsel avoided such testimony for tactical reasons, obviously did not believe that a voluntary intoxication defense would be effective, and probably feared the type of information which might be disclosed on cross-examination of the suggested witnesses. We will not use hindsight to second guess counsel's strategy, and so long as it was reasonably effective based on the totality of the circumstances, which it...